20171213 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA LAND APPEAL NO. 33 OF 2017. --- {Arising- from. the_ decision of the qistrict · Land and Housing Tribunal in the Land Case Appeal No. 180/2015 at Dodoma). THE REGISTERED TRUSTEES OF BARAZA KUU LA WAISLAM (BAKWATA) AND 2 OTHERS ................................................................. APPELLANTS --- ~ - -- - -- - -- -- --VER-SUS~ -- -~--- -- - __ MOHAMED ATHUMANI ........ ~ .. ~ .......... ~ ............................. RESPOND_E~T JUDGMENT 13/12/2017 & 12/02/2018 H.H.KALOMBOLA,J.: There are two grounds of appeal which have been filed by the Appellants, THE REGISTERED TRUSTEES OF BARAZA KUU LA WAISLAM ( BAKWATA) PONSIANA KASHUKU and JUMA SAIBU ( the 1st , 2nd and 3rd appellants respectively), these are:- 1. That, the Honorable Trial Chairman of the Tribunal~ properly analyze the evidence on record in his decision which evidence if would have been properly analyzed the decision would have been in favour of the appellants. 1 2. That, the Honourable Tribunal Chairman of the Tribunal erred in Law for disregarding and or excluding the evidence of DW4 in his decision. The trial tribunal finally ended up by declaring the applicant, now the respondent MOHAMED ATHUMAN a rightful owner of the suit property situated on Plot No. Block DD chang'ombe, Dodoma Municipality. On the day of hearing Mr. Mbunda advocate for the appellants in respect of the 1st of appeal submitted that DW2 evidence was n6tanalysed, DW2-tenaered as exhibit- a-le-tter--of offer which was issued by CDA in respect of Plot No. 75 Block DD, chang'ombe which was in the name of the 1st appellant. Also he tendered a receipt in regard to the fees which was .. ---·- paid -for -survey -of fhe- area. -That-th-e·-1 sr appella-nl- -paid -,shs- - - . 30,000/= on 3/7/2004. As on their 2nd ground of appeal it is submitted DW4's ( 3rd appellant} evidence was never analysed as it is evidenced in the judgment. For the respondent Mr. Nyangarika submitted that the trial . Court decision is correct as there is evidence the respondent bought the land in dispute even before squatter upgrading. They blamed the "Kikundi kazi" which named the house as that of Bakwata. It is not enough to say the land belongs to the 1st appellant merely because the offer reads the name of Bakwata. Since DW4 was in "Kikundi Kazi" then his evidence is questionable. 2 That the trial tribunal analysed the evidence before it, Bakwata admits the house was given . to them by the respondent, it is submitted, the offer was obtained by .fraud or mistake. Mr. Mbunda rejoined that the appellant was allocated the land by CDA. lncase there was fraud, then the respondent ought to have sued CDA. After having gone through the evidence adduced at the District Land and Housing Tribunal, there is clear evidence from both sfdes7hal the lanalnaispute was--rn-fne firslplace owned by the respondent. It was alleged that later on the same was given to the 1st appellant by the respondent on his own free will as it is found in the evidence of DWl AYUBU. RAMADHAN CHEPA, ··-15W3-when was cross.:-examined by- Ms Mnzava - ·an-a PW2 -AMON MESO MAPYA. The issue here is whether the respondent later on gave this land to the 1st appellant. Much as the record show, there is no proof to that as DW3 PONSIAN KASHUKU said he was just informed by the secretary that PWl gave the premises to Madras to use while DWl AYUBU RAMADHAN CHEPA when in cross- examination by Mnzava advocate answered there was no writing in respect of this process. For this evidence it means therefore that there is no evidence that th? respondent gave this land to the 1st appellant, except that there is evidence that the respondent allowed the premises he built to operate Madras. In the premises I find the trial tribunal properly analysed 3 the evidence before it and reach the decision as it is found in the record. In regard to the 2nd ground of appeal that the trial tribunal disregarded and excluded the evidence of DW4. This Court finds the evidence of DW4 JUMA SAIBU has no weight at all that is why the tribunal disregarded it. I say so because DW4 only testified by the time of survey he was a secretary of II Kikundi Kazi" he sees the owner is the 1st appellant without even assigning proof to that effect. And when cross-examined by Mnzavcfadvocate ~fie -slate-d~ that-he--was~inform-ed ~by the- secretary that the plot belong to the 1st appellant. And that he was not present at the time the process was conducted, i.e at the time of identification of the plot. - --- --G-Oing -6y fhis-· evidenc-e -·wnicn -was -adduced· at --the-trial - -- tribunal, I see no reason to fault with it, in the circumstance and for the foregoing reasons discussed hereinabove, the appeal at hand has no merit, the decision of the District Land and Housing Tribunal for Dodoma at Dodoma in Application No. 186/2015 is upheld. The appeal is dismissed with costs. 4 1 ,;~"•-" DATE: 12/02/2018 Coram: Hon. Madam H. H. Kalombola,J. 1st Appellant: Present 2nd Appellant: Absent 3rd Appellant: Present Respondent: Present Mr. Nyangarika advocate-, Present. C/c: ljinji COURT: Judgment read today 12/02/2018 in the presence of all parties except the 2nd appellant. Mr. Nyangarika advocate for the respondent is prese-nt, -~,fr.---Mbunda -- advocate - for- the -- -- -- appellant is absent. 5